So help me, I am an immigration attorney. I've practiced on the East Coast, where illegal immigration and immigration fraud are generally viewed as victimless crime. I've practiced on the border where it's so easy to beat the system that nobody bothers trying to work within it. The only perspective I come from is I want good government -- responsive bureacracrats, well-versed judges, and enforcers with a sense of proportion.

Wednesday, December 19, 2007

Mohamad Tax Update

A tremendous victory! Got a motion to dismiss from the other side with these cryptic words, "After review of the Respondent's immigration file, the Department [of Homeland Security] believes the circumstances of the case have changed after the Notice to Appear was issued to such an extent that continuation is no longer in the best interest of the government." Phrasing they learn at Homeland Security newspeak academy.

Those squirelly squirrelly squirrels. Translation -- "Upon realizing we were being played by somebody at the USCIS, we decided to cut our losses. The guy's going to be so ecstatic about his 'win,' let's go ahead and get one last dig in, just to put him in his place."

This still doesn't get Mohamad his citizenship, mind you. But we're halfway there.

Tuesday, December 18, 2007

Get me, I'm on technorati

Technorati Profile

The Mohamad Tax

Mohamad is from Syria, but he spent a lot of his working life in Jordan before seeking his fortune in the US in June 1994. Based on his work experience in Jordan, a US restaurant sponsored him as a Halal butcher and he adjusted to legal permanent resident in December 1997. As a green card holder who was soon going to be able to naturalize, he married his wife, who was then a B-2 visitor, in March 2001. They had their first child, a US-born citizen, in September 2002. Mohamad filed an I-130 petition (“I-130”) for Wife simultaneously with his N-400 application for naturalization (“N-400”) in August 2002.

Because he is from Syria, an Al Qaeda country, there is another step in anything he files and that is that his file gets sent to FBI for a name check. Is this “profiling” based on national origin? Sure it is. But it’s just one of the many post-9/11 trade-offs the public sheepishly admits they generally feel like is justified. Because it’s maybe a tiny measure of safety with not much more of a burden on the person. The Arab and Middle Eastern community is basically being asked to take one for the team here, and generally they do so with humility and grace.

Or, to look at it another way, generally the victims of this policy are far more defeatist and docile about it than is appropriate to people we are supposed to be training to take their place in American society.

But here’s the thing. FBI name check ends up being an enormous burden on people with common names, with checks taking five years and more. So it basically ends up being a Mohamad tax. If your name is Mohamad, everything you try to do in the US is going to take five years longer than it takes anyone else. Mind you, that is not five years of active investigation. Don’t kid yourself. We don’t have near the resources or the political will to do that. The five years is just the time it takes until the FBI works through its backlog and gets to your file.

So say I am a bad guy. That’s five years where my file is sitting in a box. Five years before you discover me. So even if, despite yourself, you agree with the trade-off of my due process for your security; you’ve made this deal with the devil for nothing. Because you are now less safe with me running around for five years than you would be with me having to go before an officer.

Mohamad’s file was sent for name check in December 2002. The USCIS interviewed Mohamad for naturalization on May 2003. At that point, the N-400 was approvable, but for FBI name check, which was still pending.

They had their second child, a US-born citizen, in February 2005. Mohamad’s I-130 for Wife was approved in May 2005, but she was not able to adjust to green card because Mohamad had not yet naturalized.

At this point, everyone agrees that he is fully eligible for citizenship. He passed the English, the civics. He’s always supported himself and his family, paid his taxes; has no criminal record. It’s only the FBI check. Years pass; his life is on hold. His wife can’t get a driver’s license; can’t work. He contacts the various agencies, his congressman, the ombudsman -- no one can do anything.

Finally, after years of waiting for citizenship that he was fully eligible for, he brought a mandamus suit. A mandamus suit is basically suing the government to do their job. Yes or no, they have to give you an answer. He brought the mandamus suit in March 2006.

The suit forced the FBI to complete his name check, which they finally did in May 2006. Remember that the point of an FBI name check is that it is a much more thorough check than a person normally has to go through to get citizenship. So if you pass this check, then that means that the FBI has used all of its resources to check you and found nothing wrong. In December 2006, the case was remanded to the USCIS for a decision on the N-400.

In May 2007, over a year after he sued the government for an answer, they called him in for a re-interview. At the re-interview, they are supposed to pick up where they left off, basically checking that everything is still correct and current from the first interview, and moving along to the next step. Instead, the officer asked him all sorts of cryptic questions about his work back in Jordan.

In September 2007, Mohamad got a denial in the mail saying that “The State Department” has found that he lied about his work in Jordan, so he can’t naturalize and, furthermore, he needs to go to immigration court about whether he should even be allowed to keep his green card.

After some phone calls, we think we know what happened. Basically, a full decade after a USCIS officer took a look at the proof of his employment in Jordan and found it satisfactory; some unnamed state department employee with who-knows-what training, under who-knows-what authority took it upon himself to make some phone calls to who-knows-who, who said who-knows-what, based on first-hand knowledge, or not.

To put it another way, it’s hearsay. Rank hearsay, we sometimes like to say. Rank, stinking, putrid, oozing hearsay. I can think of no other explanation than that someone (at the USCIS?) wants to make an example of him because he sued the government for an answer. Plain vanilla petty retaliation dressed up as an official act. If your English teacher was like mine, she taught us to be wary of the passive voice, right? To unpack the language that people hide behind? “The State Department has determined,” = “a guy at the embassy told me.” So where’s that guy? Show me his report, his affidavit, his text message -- anything!

We’ve already been to Immigration Court twice on this. The judge asked the trial attorney for Homeland Security if they had anything to back that up, and of course they did not. But he gave them more time to fabricate -- a’herm, I mean, substantiate -- their claim. For now, without any more evidence than whatever it is “The State Department” secretly “determined,” this innocent man stands in jeopardy not only of the citizenship that by rights he should have gotten in 2003, but of the green card that he has had in good standing since 1997.

I am fortunate in my client. I know that he is scrupulously honest. I know that they will find nothing. (I can’t say this about all of my clients. But then, be honest, can any of us say that about all of our friends?) So, if there is any justice, after all of the appeals and the trials are done, I will be able to wrest back his green card if not get him that citizenship. But what will it have cost him? What will our clumsy first steps at homeland security have cost him? In lost time, lost productivity, in family discord, in legal fees, in stress? And what will it have cost us? In resources, in lost revenue, in loss of integrity, in bitterness?

Monday, December 17, 2007

"But I'm just trying to be like you said."

It was one of those convoluted cases you get in immigration law where you have to go all the way around your elbow to get to your thumb. The doctor was from Sudan. Like so many men of science, he had in his youth made the mistake of assuming that his country’s body politic would thank him for his constructive criticism. Fleeing enemies in high places, he and his family crossed, like The Sound of Music, into the United Arab Emirates.

Like so many countries in the region, the UAE has no immigration law and no refugee law to speak of, although it is no exaggeration to say that practically the entire civilian workforce is foreign-born. It’s safe there. Employers are generous. Oh, you have to know your place. Your employer will hold your passport. You will never own a piece of this country. Your children born here will never become citizens. When you retire, you will be given the length of your unspent leave to pack up and go home. But if you squint, it looks like you have something.

The doctor filed for the US visa lottery and got it. With high hopes, he shipped the whole family to the land of liberty. But when he got here, he was astonished to find that his medical degree, though Western, was useless and his former life of docility had unfit him for the whole unseemly business of marketing himself. And so, before his leave was spent, he high-tailed it back to the UAE, where he was a respected, separate but equal, professional.

There is time, he thought. I cannot risk this. My mother, my sisters, my wife, my children – twelve people depend on me. I will send the older children on ahead. Then, when I have built a nest egg, I will retire there. Every year, he would take his (very generous) vacation time, and he would spend it “job hunting” in the US, and every year he would turn back.

Until one visit, when he was picked up, shackled, and run through the ringer for having “relinquished” his permanent residence, which is, when you think about it, the most preposterous legal fiction. As if anyone would do such a thing – relinquish his right to live in his home -- home, by now, to his wife, and all of the children. What he was really guilty of was the crime of ambivalence, of insufficient gratitude to the country that had rescued him from the third world.

He was also the victim of an unannounced policy shift. Government counsel sneered, “He’s just using his greencard as an entry-exit visa.” Shocked, shocked. As if the sheer sinister import of using your greencard as an entry-exit visa were obvious. What had been malum prohibitum had suddenly become malum in se.

This man was my very first client, and he was perfect because he represented all that there is in this practice. He was, if you cocked your head one way, a freedom fighter, suffering in exile; or, if you wanted him to be, he could also be a craven liar, trying to pull one over on Uncle Sam. He was bewildered and imploring and sad, but a proud paterfamilias given to opining aloud as to possible medical ailments behind his jailers’ nasty behavior. He was exasperating and charming. He said I was like a daughter.

But the element of that first case that is the most characteristic of all is that, having gotten up a righteous head of steam about the principles and equities at stake, it all came down to procedure and bureaucracy in the end. I thought I could win this case. I really did. But the case would not be heard for months, so pursuing the case meant that he would not make it back for his final year of employment in UAE – the year that would qualify him for retirement. He wanted a resolution – any resolution – now.

We tried to negotiate something, but government counsel wouldn’t budge. Thus, trying to make up for my failures with familiarity, I offered him a ride home. In the car he told me that he wasn’t sure that this outcome wasn’t for the best. America was too much for him anyway – cold, alienated. He said he wasn’t sure that one could live a moral life here. I said I knew what he meant and I did, but, ever the ambassador, I added, I will say this about Americans, though. They take what is theirs. I said, with all due respect, I can’t even get my American head around why the ninety percent of you who have none of the power in the country you’re trying so hard to get back to – why you don’t rise up and chop heads.

The next day I was closing out his case when I got a phone call. It was Homeland Security. My guy had taken it upon himself to hold his own personal vigil outside government counsel’s office until someone gave him redress. They put him on the phone and I laid into him. What are you nuts? He said, I’m just trying to be like you said – American. And the next thing I knew they were dismissing his case and handing him his passport.

I didn’t know whether to chalk that up as a win or a loss or how to bill for it, but it made me think. I grew up hearing the Horatio Alger story from my parents about grandma coming over from the old country and nobly putting her should to the wheel in the new land and I have no doubt that our backstory is just as complicated. We’re not freedom fighters and we’re not craven liars. Just folks.
And I’m no hero either. I just want to throw my little spitball for justice. And these little moments – of victory, of humility, of recognition – are why I do what I do.

"He Had No Shoes"

“How much do you think this suit cost?” my father inquired. Can you hear the tone in his voice? Think Socratic method. He was trying to teach me something about how small my world was, how small my thinking.
“I dunno, $500?” I offered, thinking that a preposterous price.
“Fifteen hundred dollars,” was his reply. I was busted. Busted for shabbiness.
“Fair enough,” was my retort, “How much did my suit cost?”
“$200”
“Six”
“Hundred?”
“Dollars, as in, I gave them ten dollars and they gave me change.” Score one for your plucky daughter. This is me and my Dad.
He was once a truant officer, a Sociology professor. Think “Talented Tenth.”
Later, after we had grown, he discovered his will to power. Now, he’s Cliff Huxtable. Yes, with the sweaters – yes, all of it. And he opines aloud why his children do not show more enterprise. And we say, um, because we were raised by do-gooder civil servants. Duh.
My shabbiness has become a point of pride, but I’m not above exploiting my father’s material success – at least when it comes to establishing my “cred” to my clients.
They want to meet me on my terms. They say,
“Back there, we were rich. If you’d come to our house, we would have showed you such hospitality. The servants would have had the coffee out before you could take off your shoes. That’s the thing about America that is hard. Here we are at the bottom. These White people. Nobody can tell that we were rich.”
And I say,
“That’s the thing about America that is miraculous. Nobody can tell. Why should they? You were rich. You may be rich again, if, that is, we can settle your immigration matter.” And they start to roll their eyes and I say, “My father came from Jamaica. He didn’t have shoes.”
This has the desired effect. They pause in the middle of their cynicism. They look me over. Maybe they don’t know that my suit came from Target. And when I say Target, I don’t mean that I bought it at Target. I mean somebody bought it at Target and gave it to Goodwill, where I bought it. They think I’m wealthy. They think I’m powerful. They think, her father is Black. He didn’t have shoes. Now here she is.
And they believe.
Now the thing about the shoes – that is a bold-faced lie. He must have had shoes. He came over on a plane. Surely they wouldn’t have let him on the plane if he didn’t have shoes. It is a story my family tells. He came over. It was snowing. He had never seen snow. This barefoot boy from Jamaica. And somewhere somebody embellished. And now it sounds like he rowed over in a leaky raft. And shoeless, to boot.
It’s a lie, just like my Target suit. But it’s my shortcut to telling them, “You say these things because you want me to respect you. Because you think that to me, to America, all you are is your poverty. But that’s not what we’re about here. I want to see what you’re made of. And so does this country.”
And THAT is no lie.